US Domestic Drone Use Sidesteps Warrants for Thermal Imaging

Demand for the use of surveillance drones by law enforcement is growing rapidly, but the rules for their use haven't yet caught up with that demand, engendering fears of unwarranted searches.

Drones are equipped with powerful video cameras and infrared (thermal imaging) devices capable of seeing through roofs, but they can also be fitted with radar speed-cameras and other miniaturized equipment capable of performing chemical analyses, environmental sampling, industrial emission monitoring, radiation detection, and much more.

In 2001, the Supreme Court ruled 5-4 in Kyllo v. United States that using thermal imaging to search within a home fell within the scope of the Fourth Amendment, which says that people have the right "to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures," and that "no warrants shall issue, but upon probable cause."

"Customs and Border Protection definitely does use thermal imaging on its drones, and has used the Predator drones to help out state and local law enforcement," Jennifer Lynch, a staff attorney with the Electronic Frontier Foundation (EFF) who works on open government, transparency and privacy issues, told Newsmax.

"I don't think law enforcement agencies and the federal agencies are getting warrants before they are using thermal imaging on drones. That will be a big issue in the future if they're using it to see what's going on inside a home," Lynch said.

What little has been made public about the FBI's use of drones emerged in July in correspondence between Republican Sen. Rand Paul of Kentucky and Stephen D. Kelley, assistant director of the FBI's office of Congressional Affairs.

The FBI has used surveillance drones in eight criminal cases and two national security cases, according to a July 19 letter from Kelley.

In a case in North Dakota, a Nelson County sheriff on June 24, 2011, arrested three men on a 3,000-acre farm with the assistance of the State Highway Patrol, a regional SWAT team, a bomb squad, ambulances, deputy sheriffs from three other counties -- and a U.S. Customs and Border Protection Predator drone utilizing a thermal imaging camera.

CBP used the drone flying more than two miles above the farm to help identify the location of the men and determine that they were not armed before their arrest, according to a Los Angeles Times report.

That incident -- the three men are reported to have threatened the sheriff at gunpoint in a dispute over six cows -- was the first known arrest of citizens on U.S. soil involving the assistance of a drone.

"In that case there was a warrant," Lynch said. "It's unclear whether the warrant covered drone use or thermal imaging."

Lynch said "when you talk to law enforcement they say that they are allowed to fly drones in the public air space without a warrant."

That opinion is based on three Supreme Court cases from the 1980s -- sometimes referred to as "the flyover cases" -- involving manned aircraft rather than drones.

In those cases, "law enforcement flew over a private space and was able to see down into that private space," Lynch said.

They "did not have a warrant in advance, and the Supreme Court said that because the law enforcement agent was in navigable public air space, and was able to see what anyone would see from a plane or a helicopter, that it wasn't a protectable privacy interest, so the Fourth Amendment didn't apply," and a warrant was unnecessary, Lynch said.

Lynch said "the big difference between those cases and the potential use of drones is that this was a one-time flyover. It wasn't like the cops were hovering over a house or hovering over a backyard and monitoring it for extensive periods of time like you could do with a drone."

Cases involving unmanned surveillance drones have not yet been taken up by the court.

Rand Paul and the FBI

When Sen. Rand Paul recently sought information about the FBI's use of drones and clarification about how it determines when Fourth Amendment protection applies to their use, the FBI altogether ignored his June 20 letter.

It wasn't until Paul wrote again on July 9, and held up the vote to confirm the appointment of James Comey to head the FBI, that the agency provided a response.

"Without a warrant, the FBI will not use UAVs [unmanned aerial vehicles] to acquire information in which individuals have a reasonable expectation of privacy under the Fourth Amendment," says the July19 letter to Paul from Stephen D. Kelley, assistant director of the FBI's Office of Congressional Affairs. "To date, there has been no need for the FBI to seek a search warrant or judicial order in any of the few cases where UAVs have been used."

Paul again asked for clarification about the FBI's interpretation of "when an individual is assumed to have a reasonable expectation of privacy," and received a response on July 29, which referred to the FBI's partially classified Domestic Intelligence and Operations Manual.

"The FBI today responded to my questions on domestic use of surveillance drones by saying that they don't necessarily need a warrant to deploy this technology. I disagree with this interpretation," Paul said in a statement posted on his Senate website. But Paul released his hold on Comey, who was confirmed as FBI head July 29 in a 93-1 vote, with Paul casting the lone "Nay."

Documents that the Electronic Frontier Foundation received through the Freedom of Information Act (FOIA) litigation show the FBI to be far more secretive about its use of drones than the Customs and Border Protection and the U.S. military.

Federal Aviation Administration spokesman Les Dorr told Newsmax that "the FBI basically called for almost all of the information that was on the documents to be withheld because of exemptions within the FOIA law."

The FAA clears the operation of drones in U.S. national airspace for safety purposes by issuing a "certificate of authorization." Dorr said that from 2008 to June 11, 2013, the FAA had issued 80 certificates of authorization to law enforcement, of which 58 are still active.

FAA and Drones

FBI letters and public statements make the point that it receives FAA authorization for drone usage.

For example, Kelley's July 19 letter to Paul says, "The FBI must obtain a certificate of authorization from the FAA prior to using UAVs for surveillance, and comply with the FAA guidelines on the use of UAVs in the national airspace."

For perspective, Dorr told Newsmax that, "The FAA's sole mission is safety, so as far as what someone would put on an unmanned aircraft is relevant to us only to the extent that it would affect the airworthiness of the unmanned aircraft. We don't regulate the actual use of them."

Federal, state, or local government agencies or public universities must have FAA permission in the form of a certificate of authorization to fly an unmanned aircraft, Dorr said.

"Basically what you have to do is tell the FAA what you want to fly, when you want to fly it, where you want to fly it, then we evaluate the proposed operation to make sure that it can be conducted without a hazard to other aircraft in the air or to people and property on the ground, " Dorr said.

Just looking at how birds can bring down a large commercial or military aircraft, "You can't minimize the damage that even a small unmanned aircraft can do. Imaging what would happen if say a 10 pound unmanned aircraft was sucked into a jet engine, be it an airliner or a military aircraft, or if it hit the structure of a smaller airplane. That's why they have to have permission," Dorr said.

Demand for the use of surveillance drones by law enforcement is growing rapidly, but the rules for their use haven't yet caught up with that demand, engendering fears of unwarranted searches.
Drones are equipped with powerful video cameras and infrared (thermal imaging)...